1

Filed 2/16/23 P. v. Allen CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

JAON JAMES ALLEN,

Defendant and Appellant.

E077868

(Super. Ct. No. INF1800930)

OPINION

APPEAL from the Superior Court of Riverside County. Otis Sterling III, Judge. 

Affirmed.

Jennifer A. Gambale, under appointment by the Court of Appeal, for Defendant 

and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney 

General, Charles C. Ragland , Assistant Attorney General, Melissa Mandel and 

Genevieve Herbert, Deputy Attorneys General, for Plaintiff and Respondent.
2

I.

INTRODUCTION

While demanding money, defendant and appellant Jason James Allen attacked his 

roommate, J.B., with a baseball bat, causing J.B. severe, extensive, and permanent 

injuries. A jury convicted defendant of various offenses and he was sentenced to a term 

of 15 years, eight months, plus a term of seven years to life.

Defendant argues insufficient evidence supports his robbery conviction, the trial 

court erroneously instructed the jury on lesser included offenses and denied his Marsden1

motion, and his trial counsel violated his Sixth Amendment rights by conceding he was 

guilty of two charges. We affirm.

II.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant and J.B. met in early 2018. Defendant was having financial troubles, 

so J.B. offered his spare bedroom to defendant for $100 per week. They lived together 

for a few months without any problems until J.B. thought defendant “started going 

downhill.” Defendant lost his job and was just laying around all day. J.B. had loaned 

defendant money several times and felt like he had become “more or less like an ATM” 

for defendant.

1

See People v. Marsden (1970) 2 Cal.3d 118.
3

J.B. eventually could no longer help defendant financially because the house was 

being sold and J.B. needed to save up as money as he could for the move. J.B. kept 

$3,500 in case in his wallet and some money in his kitchen drawer. He told defendant he 

wanted to buy a new truck and carried cash on him in case he saw one he wanted to buy, 

but told defendant he only had $1,500 because he did not want defendant to know how 

much he had saved.

One evening in May 2018, defendant’s car would not start and accused J.B. of 

“‘messing with it.’” J.B. denied the accusation and told defendant that he had been living 

in J.B.’s house for five months and was free to leave if he thought J.B. was messing with 

his car.

After their brief argument, defendant went to his bedroom. About 40 minutes 

later, defendant apologized to J.B. and acknowledged that J.B. had done a lot for him. 

Defendant said he did not want to go to bed angry and asked for a hug. They hugged, 

and J.B. thought the problem had been “squashed.” Both of them went to bed shortly 

afterward.

Around 3:00 a.m. the next morning, J.B. woke up to the sound of breathing and 

defendant on top of him. Defendant then hit J.B. twice in the forehead with an aluminum 

baseball bat. J.B. tried to get up, but defendant kept hitting him with the bat “over and 

over.” Defendant hit J.B. by lifting his arms up and striking downward as well as by 

swinging the bat from the left to right.
4

J.B. began feeling dizziness past the point of pain, yet defendant kept hitting him. 

J.B. tried to push defendant away with his foot, but defendant hit him in the leg 

repeatedly and broke his leg. J.B. tried using his other foot, but defendant broke his foot 

by hitting it with the bat.

J.B. tried to escape but slipped on his blood. Defendant hit J.B. on his head, 

pacemaker, ribs, and testicles. Defendant told J.B., “‘You shouldn’t have made me mad. 

Now I have to kill you.’” and “‘You’re going to die.’” Defendant kept hitting J.B. with 

the bat “anywhere and everywhere he could.” At one point, defendant had to stop and 

catch his breath.

Defendant then asked J.B. where his keys were. J.B. said they were on his 

nightstand and told defendant to take them and leave. Defendant grabbed the keys and 

said he wanted J.B.’s money. J.B. said his money was not in the house, but defendant 

said he knew J.B. had money on him to buy a truck and demanded “[t]he money in 

[J.B.’s] wallet.” Defendant then said, “‘I want your money now, or I’m going to make 

your death really painful.’”

Fearful for his life, J.B. told defendant the money was in the kitchen drawer. 

Defendant dragged J.B. toward the kitchen, but he was able to escape. J.B. went to his 

neighbors’ house while yelling for help. When his neighbors answered their door, J.B. 

repeatedly asked for help and said, “‘[m]y roommate just beat me with a baseball bat.’” 

They helped J.B. inside and called 911. J.B. was covered in his blood and looked like he 
5

was in shock and was going to lose consciousness. He told his neighbors that his 

roommate had “taken off” with his car and money.

When law enforcement searched J.B.’s home, they found an aluminum baseball 

bat with dried blood on it. There was a large amount of blood on J.B.’s bed and some on 

his bedroom walls. J.B.’s car was missing and his wallet was on the floor next to his bed 

with no money in it. J.B. usually kept his money in the kitchen drawer or the top drawer 

of nightstand next to his bed, which law enforcement observed was partially open.

Defendant’s cell phone was traced to Modesto, where J.B.’s car was later found in 

a parking lot. Defendant’s cell phone records showed he was traveling north, and he was 

eventually arrested in Washington.

J.B. was hospitalized for 10 days. He suffered multiple injuries, including: a skull 

fracture that required nine staples in the back of his head; a broken back; a broken nose; a 

facial fracture and a pushed-in eye socket; a fractured elbow; a broken finger and hand; 

bruises all over the front and back of his entire body; a broken leg; head lacerations; and 

an ear ripped in half; and a ruptured testicle. He required several surgeries, including one 

to remove a testicle, and a blood transfusion. J.B. also suffered anemia because of acute

blood loss.

J.B. was left with permanent injuries. He has several scars, including a large one 

across the back of his head. Part of his ear is also missing and one of his fingers is 

permanently disfigured. Because of his finger injury, J.B. can no longer work as a 

painter. He cannot bend over or squat down all the way, and his foot hurts if he works 
6

for more than a couple of hours. J.B. frequently gets dizzy and has trouble connecting his 

thoughts and talking. He also suffers from anxiety and panic attacks and is “paranoid” 

about being attacked at home.

A jury convicted defendant of attempted premediated murder (Pen. Code, §§ 664, 

187, subd. (a)2; count 1), torture (§ 206; count 2), carjacking (§ 215; count 3), robbery 

(§ 211; count 4), and aggravated mayhem (§ 205; count 5). The jury also found true the 

allegations that defendant personally inflicted great bodily injury during the commission 

of counts 1, 3, and 4, and that he personally used a deadly and dangerous weapon, a metal 

bat, (§ 12022, subd. (b)(1)) during the commission of all five counts. The trial court 

sentenced defendant to a determinate term of 15 years and eight months followed by an 

indeterminate term of seven years to life in state prison.

III.

DISCUSSION

Defendant argues (1) substantial evidence does not support his robbery conviction, 

(2) the trial court failed to instruct the jury on battery causing serious bodily injury as a 

lesser included offense of aggravated mayhem, (3) the trial court failed to instruct the 

jury on attempted robbery, (4) the trial court erroneously denied his Marsden motion, and 

(5) his counsel violated his Sixth Amendment rights by conceding he was guilty of 

robbery and carjacking. We reject defendant’s contentions.

2

All further statutory references are to the Penal Code.
7

A. Robbery Conviction

Defendant argues substantial evidence does not support his robbery conviction 

because there was insufficient evidence that he took J.B.’s money. We disagree.

“When considering a challenge to the sufficiency of the evidence to support a 

conviction, we review the entire record in the light most favorable to the judgment to 

determine whether it contains substantial evidence—that is, evidence that is reasonable, 

credible, and of solid value—from which a reasonable trier of fact could find the 

defendant guilty beyond a reasonable doubt. [Citation.] . . . We presume in support of 

the judgment the existence of every fact the trier of fact reasonably could infer from the 

evidence. [Citation.] If the circumstances reasonably justify the trier of fact’s findings, 

reversal of the judgment is not warranted simply because the circumstances might also 

reasonably be reconciled with a contrary finding. [Citation.] A reviewing court neither 

reweighs evidence nor reevaluates a witness’s credibility.” (People v. Lindberg (2008) 

45 Cal.4th 1, 27.)

“‘Although it is the duty of the jury to acquit a defendant if it finds that 

circumstantial evidence is susceptible of two interpretations, one of which suggests guilt 

and the other innocence [citations], it is the jury, not the appellate court which must be 

convinced of the defendant’s guilt beyond a reasonable doubt. If the circumstances 

reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the 

circumstances might also reasonably be reconciled with a contrary finding does not 

warrant a reversal of the judgment.’” (People v. Thomas (1992) 2 Cal.4th 489, 514.) We 
8

may reverse a conviction for a lack of substantial evidence only if it appears “‘“that upon 

no hypothesis whatever is there sufficient substantial evidence to support [the 

conviction].”’” (People v. Cravens (2012) 53 Cal.4th 500, 508.)

The elements of robbery are: “(1) defendant took property that was not his own; 

(2) the property was in the possession of another person; (3) the property was taken from 

the other person or his or her immediate presence; (4) the property was taken against that 

person's will; and (5) the defendant used force or fear to take the property or to prevent 

the person from resisting.” (People v. Merritt (2017) 2 Cal.5th 819, 824.)

Defendant focuses on the third element, arguing that there was “no evidence” that 

he took J.B.’s money. We disagree. J.B. testified that he had $3,500 in his wallet before 

he went to bed on the night defendant attacked him and had told defendant that he kept 

$1,500 on him in case he saw a truck he wanted to buy. While attacking J.B., defendant 

demanded money and said he knew that J.B. had money on him. J.B. also testified that 

he routinely kept his wallet in his nightstand’s top drawer or a kitchen, and investigating 

officers found his empty wallet on the ground near the nightstand with the top drawer 

partially open. J.B.’s neighbor testified that J.B. stated his roommate had “taken off” 

with his money. From this evidence, the jury could reasonably find that defendant took 

J.B.’s money. As a result, substantial evidence supports defendant’s robbery conviction.
9

B. Battery Causing Serious Bodily Injury Instruction

Defendant argues the trial court had to sua sponte instruct the jury on the offense 

of battery causing serious bodily injury as a lesser included offense of aggravated 

mayhem. We disagree.

“[A] lesser offense is necessarily included in a greater offense if either the 

statutory elements of the greater offense, or the facts actually alleged in the accusatory 

pleading, include all the elements of the lesser offense, such that the greater cannot be 

committed without also committing the lesser. [Citations.]” (People v. Birks (1998) 19 

Cal.4th 108, 117.) The trial court must instruct on a lesser included offense, even if 

absent a request, if there is substantial evidence that the defendant committed only the 

lesser offense. (People v. Moye (2009) 47 Cal.4th 537, 553.)

Battery is the willful and unlawful use of force or violence upon the person of 

another. (§ 242.) Battery causing serious bodily injury is a battery that causes “a serious 

impairment of physical condition, including, but not limited to, the following: loss of 

consciousness; concussion; bone fracture; protracted loss or impairment of function of 

any bodily member or organ; a wound requiring extensive suturing; and serious 

disfigurement.” (§ 243, subd. (f)(4).)

A person is guilty of mayhem if they “unlawfully and maliciously deprives a 

human being of a member of [their] body, or disables, disfigures, or renders it useless, or 

cuts or disables the tongue, or puts out an eye, or slits the nose, ear, or lip.” (§ 203.) 

Aggravated mayhem occurs when someone commits mayhem, but does so with “extreme 
10

indifference to the physical or psychological well-being of another person.” (§ 205.) 

Thus, the only “difference between simple mayhem and aggravated mayhem . . . is the 

requisite criminal intent.” (People v. Newby (2008) 167 Cal.App.4th 1341, 1347.)

Our Supreme Court holds that simple mayhem does not require “serious bodily 

injury,” given that certain injuries that may support a mayhem conviction, such as cutting 

a person’s nose or lip, “do not constitute serious bodily injuries.” (People v. Santana 

(2013) 56 Cal.4th 999, 1010-1011.) And because the only difference simple and 

aggravated mayhem is the defendant’s intent, a defendant can commit aggravated 

mayhem without causing serious bodily injury to the victim. It follows that battery 

causing serious bodily injury is not a lesser included offense of aggravated mayhem 

because a defendant can commit aggravated mayhem without committing battery causing 

serious bodily injury. (See People v. Birks, supra, 19 Cal.4th at p. 117.) The trial court 

thus did not have a sua sponte obligation to instruct the jury on battery causing serious 

bodily injury as a lesser included offense of aggravated mayhem.

C. Attempted Robbery Instruction

Defendant contends the trial court had to sua sponte instruct the jury on attempted 

robbery as a lesser included offense of robbery. We disagree.

The trial court must instruct the jury on a lesser included offense “‘“when the 

evidence raises a question as to whether all of the elements of the charged offense were 

present [citation], but not when there is no evidence that the offense was less than that 

charged. [Citations.]”’ [Citation.] ‘[T]he existence of “any evidence, no matter how 
11

weak” will not justify instructions on a lesser included offense, but such instructions are 

required whenever evidence that the defendant is guilty only of the lesser offense is 

“substantial enough to merit consideration” by the jury. [Citations.]’ [Citation.]” 

(People v. Taylor (2010) 48 Cal.4th 574, 623.)

Here, there was no substantial evidence that defendant committed only attempted 

robbery, not robbery. J.B. testified that he had $3,500 in his wallet, which was found 

empty after defendant attacked him and demanded the money. J.B.’s neighbor testified 

that he said defendant had taken his money and fled. Defendant presented no evidence 

disputing J.B.’s account or suggesting that he unsuccessfully tried to take J.B.’s money. 

The evidence thus established that if defendant committed any offense, it was robbery, 

not attempted robbery.

In any event, the trial court’s failure to instruct on attempted robbery was 

harmless. Failure to instruct on a lesser included offense is prejudicial only if it 

“‘reasonably probable’ the defendant would have obtained a more favorable outcome had 

the error not occurred.” (People v. Breverman (1998) 19 Cal.4th 142, 178.) This 

assessment “focuses not on what a reasonable jury could do, but what such a jury is likely 

to have done in the absence of error.” (Id. at p. 177.)

The evidence that defendant committed robbery, not attempted robbery, was 

strong. J.B. testified that defendant knew he had money on him and demanded the 

money during the attack. J.B.’s wallet was found empty on the ground next to the 

nightstand where he kept it, and the nightstand’s door was ajar. This was circumstantial 
12

evidence that defendant searched for the wallet, found it, and took the money. J.B.’s 

testimony was bolstered by his neighbor’s testimony that he said defendant had “taken 

off” with his car and his money. Defendant submitted no evidence contesting J.B.’s 

version of events.

Finally, the jury convicted defendant of robbery, which meant that the jury found 

that defendant actually took J.B.’s money. If the jury found that defendant only tried to 

rob J.B., then the jury presumably would not have found him guilty of robbery. This 

further suggests that any error in the trial court’s failure to instruct on attempt robbery 

was harmless. (See People v. Campbell (2015) 233 Cal.App.4th 148, 167.)

D. Marsden Motion

Before trial, defendant made a Marsden motion for new counsel. At a hearing on 

the motion, defendant told the trial court he had “zero confidence in his [attorney’s] 

ability to win this trial” because “[i]t has been two years I have been incarcerated, and we 

have not gotten any closer to trial than the last time you all forced him to go to trial, 

which was – I don’t know – about a month ago.” Defendant continued, “So I just don’t 

think he’s ready for trial, and I would – I would feel a lot better with my life on the line 

with somebody better – somebody different who actually took this case seriously, in my 

point of view.”
13

Defense counsel responded: “I understand [defendant’s] concerns. I have been 

with this case for two years. I have been doing everything I could on this case. I feel he 

doesn’t have a level of comfort with me and trust with me such that representation of him 

would be difficult. I do feel that there are issues with this case that I’ve tried to bring up 

that – you know, to temper expectations; however, this would be my first attempted 

murder trial. This would be – and it’s not an easy one. It does have a lot of other 

charges, and [defendant] is looking at significant exposure. [¶] I have been placed in a 

position now whether I’m juggling both the criminal practice and the juvenile practice 

and – so I don’t know that he feels I’m as prepared as I can be. I feel I’m as prepared as I 

can be on this trial, but he doesn’t feel comfortable with me and – so I would submit to 

the Court that I don’t know that representation is possible or fair to him.”

The trial court then asked defense counsel, “When you say representation is not 

possible, are you ready on the case[]? You’ve been the attorney for many years. You’ve 

handled many cases, many trials. Are you ready on this trial?” Counsel confirmed that 

he was ready for the trial. Defendant replied, “I’m still not comfortable. I just would 

really like somebody else.”

The trial court denied defendant’s Marsden motion. The court reasoned that 

defense counsel was prepared for trial and had been adequately representing defendant, 

and there was no sign that there was an “irreconcilable breakdown in communication” 

between him and defendant. The court then directed defendant “to do your best to please 
14

try to work with [defense counsel]” because the court was “sure [defense counsel] is 

going to do his best to try to work with you.”

A defendant is entitled to a new attorney if the record “‘clearly shows’” that (1)

the first appointed attorney is not providing adequate representation or (2) defendant and 

counsel have become embroiled in such an irreconcilable conflict that ineffective 

representation is likely to result. (People v. Taylor, supra, 48 Cal.4th at p. 599.) The 

defendant bears the burden of showing that the “failure to replace counsel would 

substantially impair the defendant’s right to assistance of counsel.” (Ibid.) We review 

the trial court’s denial of a Marsden motion for an abuse of discretion. (Ibid.)

Defendant does not argue that his attorney was providing him inadequate 

representation, but claims that he and his counsel were in “embroiled in such an 

irreconcilable conflict” that counsel could not effectively represent him at trial. Although 

defendant told the trial court that his counsel was not “ready for trial” and that he had 

“zero confidence” in him, he did not explain why. He did not point to anything counsel 

did or did not do that led him to believe counsel was unprepared.

Defendant emphasizes counsel’s “candid” statements at the Marsden hearing, and 

argues they show that there was an irreconcilable between him and counsel. Although 

counsel submitted that he was unsure whether his “representation is possible or fair to 

[defendant],” he confirmed that he was ready for trial, as prepared as he could be, and 

had “been doing everything [he] could do on this case.” And although counsel 

acknowledged that representing defendant “would be difficult” because of defendant’s 
15

lack of confidence and low “level of comfort” with counsel, neither counsel nor 

defendant suggested they could not communicate with one another. Instead, defendant 

only lacked confidence in counsel’s ability.

In other words, defendant failed to meet his burden of showing there was an 

irreconcilable conflict between him and his counsel that would likely result in effective 

representation. “The mere ‘“lack of trust in . . .”’ counsel is not sufficient grounds for 

substitution,” nor are “generalized expressions of distrust and dissatisfaction.” (People v. 

Taylor, supra, 48 Cal.4th at p. 600.) “If a defendant’s claimed lack of trust in, or 

inability to get along with, an appointed attorney were sufficient to compel appointment 

of substitute counsel, defendants effectively would have a veto power over any 

appointment, and by a process of elimination could obtain appointment of their preferred 

attorneys, which is certainly not the law.” (People v. Jones (2003) 29 Cal.4th 1229, 

1246.) The trial court here reasonably found that there was no irreconcilable conflict 

between defendant and counsel, despite defendant’s lack of confidence in counsel’s 

abilities. We therefore conclude the trial court did not abuse its discretion by denying 

defendant’s request for a new attorney.

E. Sixth Amendment

Near the beginning of his closing argument, defense counsel stated, “[Defendant] 

did some things on May 25th, 2018, but you cannot find him guilty of attempted murder, 

torture, or aggravated mayhem.” Counsel then focused the rest of his argument on those 

charges without addressing the robbery and carjacking charges. After doing so, counsel 
16

concluded his argument with, “[Defendant] took [J.B.’s] car keys and his money. I’m not 

going to tell you that he didn’t. I ask you to find [defendant] not guilty of attempted 

murder, torture, and aggravated mayhem. Thank you.” The prosecutor prefaced her 

rebuttal argument by stating she would focus on “the three charges that defense counsel is 

contesting. That’s the attempted murder, the torture, and the aggravated mayhem” 

charges.

Defendant argues his counsel violated his Sixth Amendment right to effective 

representation by conceding he was guilty of the robbery and carjacking charges. In his 

view, his counsel could not concede his guilt on those charges without his express 

approval because the concession amounted to a guilty plea.

Our Supreme Court rejected the same argument in People v. Cain (1995) 10 

Cal.4th 1, 30.) In that case, defense counsel told the jury that the defendant was guilty of 

two of the many charges he faced. (Ibid.) The defendant argued that counsel could not 

make these concessions without obtaining a plea waiver from defendant. (Ibid.) Our 

Supreme Court disagreed, holding that “counsel’s decision not to contest, and even 

expressly to concede, guilt on one or more charges at the guilt phase of a capital trial is 

not tantamount to a guilty plea.” (Ibid.) Our Supreme Court “has reiterated this holding 

in numerous cases.” (People v. Lopez (2019) 31 Cal.App.5th 55, 63.)

Defendant argues McCoy v. Louisiana (2018) 138 S.Ct. 1500 and People v. 

Farwell (2018) 5 Cal.5th 295, 300 nonetheless require reversal. McCoy is 

distinguishable because the defendant there “vociferously insisted on his innocence and 
17

adamantly objected to any admission of guilt,” yet the trial court allowed his counsel to 

concede the defendant committed three murders. (McCoy v. Louisiana, supra, at p. 

1503.) Defendant, however, never objected to defense counsel’s concessions, so McCoy

does not apply here. (See People v. Lopez, supra, 31 Cal.App.5th at p. 63 [finding 

McCoy distinguishable because the defendant did not object to attorney’s concession of 

guilt].)

Farwell is also distinguishable. The parties there stipulated that the defendant had 

committed all the elements of one charge and the trial court instructed the jury that it had 

to accept the stipulated facts as true. (People v. Farwell, supra, 5 Cal.5th at p. 299.) The 

trial court, however, did not advise the defendant of his “constitutional rights implicated 

by . . . the stipulation” and did not “solicit a personal waiver of those rights” from the 

defendant. (Ibid.) Our Supreme Court held that the trial court erred because the 

stipulation was “tantamount to a guilty plea” and made “the guilty verdict a foregone 

conclusion.” (Id. at pp. 299, 308.)

As our colleagues recognized in Lopez, we are bound by Cain and our Supreme 

Court’s other decisions holding that defense counsel may constitutionally concede a 

defendant’s guilt on some, but not all charges, so long as the defendant does not object. 

(People v. Lopez, supra, 31 Cal.App.5th at p. 63.) Because defendant never objected to 

his counsel doing so during closing argument, we conclude defendant’s Sixth 

Amendment rights were not violated.
18

IV.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON

J.

We concur:

McKINSTER

Acting P. J.

MILLER

J.